Jones v. State

• Court: Supreme Court of Alabama
• Writing for the Court: DENSON, J.
• Citation: 156 Ala. 175,47 So. 100
• Parties: JONES v. STATE.
• Decision Date: 04 June 1908

47 So. 100

156 Ala. 175

JONES
v.
STATE.

Supreme Court of Alabama

June 4, 1908

Appeal from Criminal Court, Jefferson County; A. C. Howze, Judge.

Jackson Jones was convicted of living in adultery or fornication with a white woman, being himself a negro, and appeals. Reversed and remanded.

The facts are sufficiently set out in the opinion of the court. The general charge was requested by the defendant, and refused by the court.

Robert E. Smith and R. T. Shugart, for appellant.

Alex. M. Garber, Atty. Gen., for the State.

DENSON, J.

The defendant, a negro man, and Ophelia Smith, a white woman, are jointly charged by the indictment in this case with the offense of living in adultery or fornication with each other. The indictment is based on section 5096 of the Criminal Code of 1896 (section 7421 of the Criminal Code of 1907), and charges a felony. On a demand for severance, it was granted, and the man (appellant) was tried alone. The trial resulted in his conviction; hence this appeal.

With the exception of the racial feature, the constituent elements of the offense are the same as in ordinary cases of adultery and fornication. The voluntary sexual intercourse by the man and woman with each other "is not the offense, but an element or constituent of the offense, the statute renders indictable. As has been often explained, the statute is directed against a state or condition of cohabitation the parties intend to continue so long as they may choose, as distinguished from a single or occasional act of illicit sexual intercourse. This state or condition may well be assumed in a single day, if the parties so design, as any other state or condition may be so assumed. If for a single day they live together in adultery (or fornication), intending a continuance of the connection, the offense is committed, though the cohabitation may be broken off or interrupted from any cause whatever." Brown's Case, 108 Ala. 18, 21, 18 So. 811, and cases there cited; Walker's Case, 104 Ala. 56, 16 So. 7; Wright's Case, 108 Ala. 60, 18 So. 941.

The testimony shows that two police officers in the city of Birmingham, while making a "search" during a night in January last, in Seventh alley, on going to a small "one-room shack," found defendant's horse and buggy in front of it; the horse being hitched to a telegraph pole. The officers looked through a hole in the door of the "shack," and saw the defendant and Ophelia Smith in a bed together, with their arms around each other and lying on their sides, undressed. The officers knocked on the door and were in a few minutes admitted by the defendant. Upon going into the room, they found the woman under the bed, with only a skirt drawn around her. The question is: Was this sufficient evidence of the corpus delicti upon which to base the admission of a confession by the defendant? The evidence does not show how long the defendant and the woman had been in the house together, nor does it show directly that they had been engaged in an act of sexual intercourse; but we cannot doubt that it afforded a...